“Found In” Means Each Discovery Is a Separate § 1326 Offense—No Intervening Removal Required

Case: United States v. Herrera‑Salazar, No. 24‑7029 (10th Cir. Sept. 26, 2025) (nonprecedential Order and Judgment)

Court: U.S. Court of Appeals for the Tenth Circuit

Introduction

This Tenth Circuit decision addresses a recurring, but under‑theorized, problem in prosecutions under 8 U.S.C. § 1326: whether the government may bring successive “found in” charges based on a single prior removal order when the defendant has not been removed again between prosecutions. The panel affirms a second conviction of Jesus Herrera‑Salazar for being “found in” the United States after a 2015 removal, rejecting a double‑jeopardy challenge and a sufficiency‑of‑the‑evidence attack premised on the absence of an intervening removal after his first conviction.

At stake is the statute’s allowable “unit of prosecution”—the minimum quantum of conduct that constitutes a discrete offense. The court holds that the text of § 1326(a) allows a separate offense each time a previously removed noncitizen is “found in” the United States, and that neither an independent predicate reentry nor an intervening removal is an element of a later “found in” prosecution. The ruling clarifies the Tenth Circuit’s understanding of § 1326’s structure, rejects a Ninth Circuit gloss that would require proof of post‑conviction presence outside the United States, and underscores that the offense completes upon discovery by law enforcement.

Summary of the Opinion

• Double Jeopardy: The court rejects the argument that multiple “found in” convictions based on the same removal order violate double jeopardy unless the government proves the defendant was removed after each conviction. Congress defines the unit of prosecution, and § 1326’s text permits a new offense each time the person is “found” in the United States. An intervening removal is not an element of a subsequent “found in” count.
• Legal Characterization of “Found In”: “Found in” is a continuing offense that begins upon unlawful reentry and completes when law enforcement, exercising typical diligence, becomes aware of the illegality of the person’s presence. Once an offender is “found,” that offense is complete; continued unlawful presence can support a new, later offense that completes upon a later discovery.
• Rejection of Ninth Circuit’s removal rule: The panel declines to adopt the Ninth Circuit’s suggestion in United States v. Meza‑Villarello that, to avoid unfairness, the government must show a defendant has been outside the United States after each conviction before prosecuting him again for being “found in.” The Tenth Circuit grounds its analysis in statutory text and its own precedents.
• Sufficiency of the Evidence: Because an intervening removal is not an element, the government did not need to prove that Herrera‑Salazar left and reentered the United States after his 2020 conviction. Stipulations established alienage, prior removal, and lack of permission; trial testimony established that he was “found” on April 1, 2022. That sufficed.
• Outcome: Conviction affirmed.

Factual and Procedural Background

• Removal and first “found in” event: Herrera‑Salazar, a Mexican national, was removed in 2015. He later reentered and was “found” by a Border Patrol agent in Brownsville, Texas on May 16, 2020. He pleaded guilty in the Southern District of Texas to violating § 1326(a), with penalties under § 1326(b)(1), and was sentenced on December 7, 2020 (the “2020 conviction”).
• Release and supervision: After serving his sentence in Texas, he was released on June 7, 2021, directed to report to the U.S. Probation Office in Muskogee, Oklahoma, and began supervised release in Heavener, Oklahoma. He was instructed not to leave the Eastern District of Oklahoma. He was not deported upon release.
• Second “found in” event and prosecution: On April 1, 2022, during a traffic stop in Heavener, local police verified his undocumented status. He was indicted in the Eastern District of Oklahoma for being “found in” the United States on that date, again based on the 2015 removal (the “2024 conviction”).
• Motion to dismiss and trial: He moved to dismiss on double‑jeopardy grounds, arguing the same removal order underlay both prosecutions and that no intervening removal separated the offenses. The district court denied the motion, and a jury convicted him after trial.

Detailed Analysis

1) Precedents and Authorities Cited

• Unit of Prosecution Doctrine:
  • Callanan v. United States, 364 U.S. 587 (1961), and Sanabria v. United States, 437 U.S. 54 (1978): Congress defines the unit of prosecution; courts look to statutory text to determine whether multiple offenses exist.
  • United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) (en banc): Unit‑of‑prosecution analysis is statutory interpretation; identifies the “minimum amount of activity” necessary for a discrete violation.
• Textualism and Statutory Interpretation:
  • Corner Post, Inc. v. Board of Governors, 603 U.S. 799 (2024), and Groff v. DeJoy, 600 U.S. 447 (2023): Emphasize adherence to statutory text over policy intuitions.
  • Oklahoma v. Castro‑Huerta, 597 U.S. 629 (2022), and Dodd v. United States, 545 U.S. 353 (2005): Courts cannot rewrite text to accord with perceived congressional intent; the result required by text, even if strict, is not “absurd.”
• Structure and Elements of § 1326(a):
  • The statute criminalizes being an alien who “has been” removed (or related status) and who “enters,” “attempts to enter,” or “is at any time found in” the United States without consent.
  • Almendarez‑Torres v. United States, 523 U.S. 224 (1998): § 1326(b)(1) is a penalty provision that enhances punishment based on prior convictions.
  • Tenth Circuit Pattern Criminal Jury Instruction 2.05 (2025 ed.): Elements—(1) alienage, (2) prior removal, (3) “found in” the U.S. thereafter, (4) lack of consent.
• “Found In” as a Continuing Offense; When It Completes:
  • United States v. Rosales‑Garay, 283 F.3d 1200 (10th Cir. 2002): “Found in” is synonymous with “discovered in.”
  • United States v. Villarreal‑Ortiz, 553 F.3d 1326 (10th Cir. 2009): “Found in” is a continuing offense completed upon discovery; “found” occurs when law enforcement becomes aware, through typical diligence, of the illegality of presence.
  • United States v. Romero‑Lopez, 981 F.3d 803 (10th Cir. 2020): Continuing‑offense framing from reentry until discovery.
  • United States v. Hernandez‑Noriega, 544 F.3d 1141 (10th Cir. 2008): It is irrelevant whether presence is voluntary at the moment of discovery; the culpable volitional act is the unlawful return.
  • Other circuits: Santana‑Castellano (5th Cir. 1996), Are (7th Cir. 2007), Clarke (11th Cir. 2002) emphasize illegality of presence; Corrales‑Beltran (9th Cir. 1999) recognizes “enters” and “found in” as distinct offenses; Parga‑Rosas (9th Cir. 2001): “entry” need not be charged to charge “found in.”
  • Prerequisite of physical presence: Pacheco‑Medina (9th Cir. 2000) and Ayon‑Brito (4th Cir. 2020): one must succeed in entering before being “found”; Pina‑Jaime (9th Cir. 2003) recognizes certain scenarios (e.g., parole termination) where “entry” is not the contemporaneous culpable act.
  • Salazar‑Robles (9th Cir. 2000): “Being found” is a passive state not requiring a voluntary act at the moment of discovery.
• Ninth Circuit’s “removal rule” and its limits:
  • United States v. Meza‑Villarello, 602 F.2d 209 (9th Cir. 1979) (per curiam): suggested, to avoid unfairness, requiring proof the defendant had been outside the U.S. after each conviction before a subsequent “found in” prosecution—without grounding that suggestion in statutory text.
  • United States v. Sanchez‑Aguilar, 719 F.3d 1108 (9th Cir. 2013): mixed characterization of Meza‑Villarello’s rationale (fairness vs. double jeopardy).
  • The Tenth Circuit declines to adopt this extra‑textual limitation.
• Double Jeopardy Framework:
  • North Carolina v. Pearce, 395 U.S. 711 (1969), and United States v. Isabella, 918 F.3d 816 (10th Cir. 2019): three protections (successive prosecutions after acquittal, after conviction, and multiple punishments for same offense).
  • United States v. Leal, 921 F.3d 951 (10th Cir. 2019), and Rodriguez‑Aguirre, 73 F.3d 1023 (10th Cir. 1996): defendant bears the burden; legal question reviewed de novo, factual findings for clear error.
• Sufficiency Review:
  • United States v. Griffith, 928 F.3d 855 (10th Cir. 2019): de novo review in the light most favorable to the verdict; reversal only if no rational juror could find the essential elements.
  • United States v. Valdiviez‑Garza, 669 F.3d 1199 (11th Cir. 2012), and Ayon‑Brito (4th Cir. 2020): consistent articulation of elements.
• Fairness and “absurdity” concerns (not dispositive):
  • United States v. Paternostro, 966 F.2d 907 (5th Cir. 1992): courts may avoid ruling on hypotheticals about repeated prosecutions when not squarely presented.
  • United States v. Morgan, 380 F.3d 698 (2d Cir. 2004): Congress did not intend to shield repeat entrants who evade detection.

2) The Court’s Legal Reasoning

• Text controls the unit of prosecution. Section 1326(a) punishes any alien who “has been” removed and who thereafter “enters,” “attempts to enter,” or “is at any time found in” the United States without consent. The phrase “at any time found in” signals that each qualifying discovery event can complete a distinct offense. Nothing in the text requires the government to prove an intervening removal after a prior conviction to prosecute a later “found in” episode.
• “Found in” is a continuing offense that completes at discovery—and can recur.
  • The first offense here completed on May 16, 2020, when Border Patrol discovered Herrera‑Salazar in Texas. At that point, the 2020 “found in” offense ended.
  • His continued unlawful presence thereafter could support a separate, subsequent “found in” offense that completed upon a later discovery—here, the April 1, 2022 traffic stop where an officer confirmed his undocumented status.
  • The court expressly rejects the notion that an “independent” reentry distinct from the pre‑2020 reentry is required for a new “found in” prosecution. Nor does completion of the later offense hinge on removal; the offense completes upon being “found.”
• Entry is not an element of a “found in” offense; removal between convictions is not an element either. Although a person typically must have reentered to be physically present, the offense charged is the unlawful presence discovered by authorities, not the act of entry. Thus, proof of a new entry or of removal after a prior conviction is unnecessary for a later “found in” charge.
• Rejection of the Ninth Circuit’s “removal rule.”
  • The panel finds Meza‑Villarello’s fairness‑based gloss unmoored from § 1326’s text and in tension with the Tenth Circuit’s textualist approach to defining units of prosecution. The Tenth Circuit is not bound by Ninth Circuit decisions and declines to import the extra‑textual requirement.
  • To the extent fairness concerns are raised (e.g., the specter of daily prosecutions), the court notes such hypotheticals are not presented here and, in any event, the defendant’s reading would produce its own absurdity by conferring a de facto immunity on persons who avoid or resist removal after a first conviction.
• Supervised release does not insulate from § 1326 liability. It is irrelevant that the defendant’s presence in the U.S. at the moment of the 2022 discovery was under supervised‑release conditions that discouraged travel. The culpable volitional act is the earlier unlawful return after the 2015 removal; moment‑of‑discovery voluntariness is not required.
• Sufficiency analysis follows from the elements.
  • The parties stipulated to alienage, prior removal in 2015, and lack of consent. The only live element was whether he was “found” in the U.S. thereafter.
  • Testimony from the stopping officer and USCIS established government knowledge of the illegality of his presence on April 1, 2022. A rational juror could find the “found in” element beyond a reasonable doubt.
  • Because intervening removal is not an element, the failure to prove it is immaterial to sufficiency.
• Scope of decision and reserved questions.
  • The court expressly does not decide whether a parade of closely spaced, repeated prosecutions might pose a Double Jeopardy or due process problem; those issues were not presented or preserved. Any “outrageous government conduct” due process claim was waived.
  • The decision is a nonprecedential order and judgment, citable for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

3) Impact and Implications

• Clarified unit of prosecution in the Tenth Circuit: Each discovery (“found in” event) constitutes a separable § 1326 offense, even when based on the same historical removal order and without proof of an intervening removal. This aligns the Tenth Circuit’s application with the statute’s text and with its own “found in” jurisprudence on completion at discovery.
• Partial inter‑circuit disagreement with Ninth Circuit practice: By declining to adopt Meza‑Villarello’s “removal rule,” the Tenth Circuit diverges from the Ninth Circuit’s fairness‑based limitation. That mismatch could invite further en banc or Supreme Court attention if the issue becomes outcome‑determinative across circuits.
• Prosecutorial discretion and charging practices:
  • Prosecutors in the Tenth Circuit can charge a subsequent “found in” count after a prior “found in” conviction grounded in the same removal order, provided the later count is anchored to a later discovery.
  • Although the court declined to resolve hypothetical “daily charging” concerns, prudent prosecutorial discretion remains important to avoid due process or vindictiveness challenges not resolved here.
• Defense strategy and supervised release:
  • Supervised‑release status does not immunize against § 1326. Defense counsel should consider early coordination regarding removal after release to reduce exposure to future “found in” charges tied to ongoing unlawful presence.
  • Where appropriate, defendants may explore preserved due process arguments (e.g., outrageous government conduct) if future cases present aggressive repeat charging without intervening removal, though such arguments were waived here.
• Elements clarity for trial practice: Pattern instructions that do not include intervening removal as an element are reinforced. Stipulations to alienage, prior removal, and lack of consent can streamline trials, leaving “found in” as the central issue, typically provable through basic law‑enforcement testimony documenting discovery and knowledge of illegality.
• Doctrinal wrinkle—knowledge and repeat discovery: The “found in” offense completes when the government learns of the illegality of presence. Conceptually, once the government knows, it “continues to know.” This decision treats continued unlawful presence after the first completion as a new offense that can later complete upon a new discovery event. While doctrinally efficient, this raises theoretical questions about what qualifies as a distinct “discovery” when government knowledge persists across agencies and time. The panel did not need to address these nuances because the later charge was anchored to a separate, later encounter with law enforcement, and the earlier offense had already completed.

Complex Concepts Simplified

• Double Jeopardy (Fifth Amendment): Protects against (1) retrial after acquittal, (2) retrial after conviction, and (3) multiple punishments for the same offense. The key is whether the later prosecution targets a legally distinct offense as defined by Congress.
• Unit of Prosecution: The smallest set of facts that constitutes one violation of a statute. Courts do not invent units; they read the statute’s text to determine whether conduct amounts to one offense or several.
• “Found In” vs. “Entry” under § 1326: “Entry” punishes the act of crossing; “found in” punishes unlawful presence discovered by authorities. Entry is typically how a person gets here, but it is not an element of “found in.”
• Continuing Offense: An offense that spans time until a specified event occurs. For § 1326’s “found in,” the offense continues from the unlawful return until law enforcement discovers the illegal presence; at that discovery, the offense completes.
• Intervening Removal: Physically removing the person from the U.S. after a conviction. This decision confirms that such a removal is not an element required to support a later “found in” charge.
• Sufficiency of the Evidence: On appeal, the question is whether any rational juror could have found the elements beyond a reasonable doubt, viewing the evidence in the government’s favor. Appellate courts do not reweigh testimony.
• Due Process “Outrageous Government Conduct” Defense: A narrow defense barring convictions where government conduct is so egregious it offends fundamental fairness. The defense was not preserved or decided here.
• Nonprecedential Disposition: An order and judgment designated as nonprecedential is not binding authority, though it may be cited for persuasive value consistent with Fed. R. App. P. 32.1 and local rules.

Conclusion

United States v. Herrera‑Salazar clarifies, as a matter of statutory interpretation and Tenth Circuit doctrine, that each time a previously removed noncitizen is “found in” the United States, a distinct § 1326 offense may be charged—even absent an intervening removal or proof of a new entry. The offense is completed at discovery; continued unlawful presence after that can ground a subsequent offense that completes upon a later discovery. The court rejects the Ninth Circuit’s fairness‑based “removal rule” as untethered to the statutory text and affirms that intervening removal is not an element of a later “found in” prosecution.

Practically, the decision empowers prosecutors to bring successive “found in” charges tied to separate discovery events and counsels defense practitioners that supervised release does not shield against renewed § 1326 exposure. While the panel leaves open hypothetical limits on repetitive prosecutions and any due process constraints not preserved here, the core takeaway is clear: § 1326’s unit of prosecution is defined by the act of being “found,” and the statute’s text—“at any time found in”—permits successive prosecutions based on later discoveries without the need for intervening removal.